Citation NR: 9709288
Decision Date: 03/18/97 Archive Date: 03/31/97
DOCKET NO. 92-15 932A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death as secondary to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel G. Krasnegor, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1966 to
November 1968, including 11 months and 21 days in Vietnam.
He died in October 1990.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a May 1992 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO).
In a February 1997 informal hearing presentation, the
appellant's representative argued that the cause of the
veteran's death was due to post-traumatic stress disorder.
This issue has neither been procedurally prepared nor
certified for appellate review and is referred to the RO for
whatever action is deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant maintains that the veteran's exposure to Agent
Orange during his Vietnam service constituted a causal factor
materially contributing to the cause of his death, thereby
warranting entitlement to a grant of service connection for
the cause of the veteran's death.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for the cause of the veteran's death as secondary
to Agent Orange exposure is not well grounded.
FINDING OF FACT
The claim for service connection for the cause of the
veteran's death as secondary to Agent Orange exposure is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death as secondary to Agent Orange exposure is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991 and Supp.
1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
At the time of the veteran's death, service connection had
not been established for any disabilities.
According to the veteran's death certificate, the immediate
cause of his death was cardiac dysrhythmia due to coronary
artery thrombosis due to arteriosclerotic cardiovascular
disease. No other conditions were listed as contributing to
the veteran's cause of death. It was indicated that an
autopsy had been performed.
Service medical records reflect that at separation in October
1968, the veteran had complaints of shortness of breath and
pain or pressure in his chest when smoking too much. He was
referred for a chest X-ray which was reported to be negative.
The veteran was taken to the emergency room at a private
hospital in October 1990 after he lay down, appeared to have
had a seizure and had stopped breathing. The appellant
related that the veteran had had chest discomfort for a
couple of days and chest pain and shortness of breath shortly
before he stopping breathing. Shortly after arrival at the
hospital, the veteran was pronounced dead.
Of record is an October 1990 autopsy report reflecting
findings of up to 80 percent atherosclerotic narrowing in the
left anterior descending coronary artery and a somewhat dry
looking thrombus in the right coronary artery. The medical
examiner concluded that the veteran's cause of death was an
abnormal heart rhythm due to a blood clot in one of his
coronary arteries, and almost complete atherosclerotic
closure of one of his other main coronary arteries. It was
noted that he had the classic history of chest pain for a
couple of days, and shortness of breath with sweating shortly
before death. He stated further that the veteran's
atherosclerotic narrowing was to a degree that it could have
caused sudden death at any time, and that the blood clot in
the right coronary artery appeared to have been present for
about 2 days prior to death.
In February 1992, the appellant submitted copies of checks
she had received as part of the Agent Orange Veterans Payment
Program.
In an April 1992 statement, the appellant indicated that the
veteran had died from a massive coronary with absolutely no
previous cardiac history, previous medical problems or
hospitalizations. She recalled that since returning from
Vietnam, the veteran had been severely stressed, having
suffered from nightmares for years with depression and
alcohol abuse.
In her July 1992 Notice of Disagreement, the appellant
contended that the veteran’s exposure to Agent Orange may
have led to his death. She submitted as evidence documents
showing that he had been paid under the Agent Orange
Veteran's Payment Program.
In October 1996, the appellant submitted a number of medical
articles concerning etiological relationships between Agent
Orange exposure and the development of various circulatory
and heart-related disabilities.
Analysis
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, a claim which is plausible and meritorious on
its own or capable of substantiation. If she has not, her
appeal must fail. 38 U.S.C.A. § 5107(a); see Murphy, 1
Vet.App. 78 (1990). The Board finds that the appellant's
claim for service connection for the cause of the veteran's
death due to Agent Orange exposure is not well grounded, and
there is no further duty to assist her in the development of
her claim.
In order for service connection for the cause of the
veteran's death to be granted, it must be shown that a
service-connected disability caused the death, or
substantially or materially contributed to it. A service-
connected disability is one which was incurred in or
aggravated by active service, one which may be presumed to
have been incurred during such service, or one which was
proximately due to or the result of a service-connected
disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310,
5107 (West 1991 and Supp. 1996); 38 C.F.R. §§ 3.307, 3.309,
3.310(a), 3.312 (1996).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected...even though there is no record of such
diseases during service...chloracne or other acneform disease
consistent with chloracne, Hodgkin’s disease, multiple
myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda,
prostate cancer, acute and subacute peripheral neuropathy,
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea), or soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi’s sarcoma, or mesothelioma).
38 C.F.R. § 3.309(e) (1996).
In this case, the veteran was not service-connected for any
disabilities at the time of his death. The appellant argues
in essence that the veteran should have been service-
connected for residuals of Agent Orange, to include heart
disease. Despite the contentions to the contrary, residuals
of Agent Orange have not been implicated by competent medical
authority on file as contributing factors in the cause of the
veteran's death.
Service medical records and post service documentation of
record for many years thereafter are totally negative for
residuals of Agent Orange exposure or arteriosclerotic
cardiovascular disease. The veteran's death certificate
clearly identifies arteriosclerotic cardiovascular disease as
the underlying cause of his death.
In this case, the record shows that the veteran served in
Vietnam for over eleven months. As such, he may be presumed
to have been exposed to Agent Orange, 38 C.F.R.
§ 3.306(a)(6)(iii) (1996). In this regard, the Board has
considered the appellant’s argument that the veteran's
exposure to Agent Orange caused arteriosclerotic
cardiovascular disease, and, as such contributed to his
death. However, the appellant has not submitted any
competent medical evidence to show that under any of the
various laws and regulations pertaining to cause of death
claims, exposure to Agent Orange constituted a material
factor in producing his death. The competent medical
evidence of record does not show that the veteran died of a
disability related to his period of active service.
The appellant is not competent to give a medical opinion on
causation, diagnosis or related matters. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Only persons trained in
the medical field may do so. As such, her arguments
regarding a relationship between Agent Orange exposure and
the cause of the veteran's death are not considered
competent. The medical records pertaining to the veteran's
post-service treatment, including those associated with his
terminal hospital stay do not support the appellant's claim
that Agent Orange exposure materially contributed to the
cause of his death.
As the Board noted earlier, service connection had not been
established for any disorder during the veteran’s lifetime.
Arteriosclerotic cardiovascular disease, the underlying cause
of the veteran’s death in October 1990, has not been linked
to his service on the basis of the competent medical evidence
of record. Arteriosclerotic cardiovascular disease is not
one of the disorders recognized by VA as linked to Agent
Orange exposure . The veteran did not develop a disorder
linked to Agent Orange exposure during his lifetime which
resulted in his death.
Accordingly, the appellant's claim of entitlement to service
connection for the cause of the veteran's death due to Agent
Orange exposure is not well grounded, and her claim must be
denied.
Although the Board considered and denied the appellant's
claim on a ground different from that of the RO, which denied
the claim on the merits, the appellant has not been
prejudiced by the decision. This is because in assuming that
the claim was well grounded, the RO accorded the appellant
greater consideration than her claim in fact warranted under
the circumstances. See Bernard v. Brown, 4 Vet.App. 394
(1993).
In light of the implausibility of the appellant's claim and
the failure to meet her initial burden in the adjudication
process, the Board concludes that she has not been prejudiced
by the decision to deny her appeal for service connection for
the cause of the veteran's death due to Agent Orange
exposure.
If the appellant or representative can secure evidence from
medically trained personnel that implicates the veteran's
Agent Orange exposure in his death, such evidence may be used
in filing another claim.
The Board views the above discussion as sufficient to inform
the appellant of the elements necessary to complete her
application for a claim for service connection for the cause
of the veteran's death. 38 U.S.C.A. § 5103(a) (West 1991 and
Supp. 1996); see Robinette v. Brown, 8 Vet.App. at 77-78
(1995); see also Isenhart v. Derwinski, 3 Vet.App. 177, 179-
180 (1992) (VA has a duty to advise claimant of evidence
required to complete application).
ORDER
The appellant not having submitted a well grounded claim of
entitlement to service connection for the cause of the
veteran's death as secondary to Agent Orange exposure, the
claim is denied.
RONALD R. BOSCH
Member, Board of Veterans’ Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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